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March 25, 2022: COMPASSIONATE RELEASE and BOP COVID-19 BLOG


Fast Facts (Full BOP stats can be found here) Currently positive-testing inmates: 149 (up from 141) Currently positive-testing staff: 137 (down from 139) Recovered inmates currently in the BOP: 53,799 (down from 53,845) Recovered staff: 12,527 (up from 12,524)


Institutions with the largest number of currently positive-testing inmates:

Cumberland FCI: 57 (up from 51)

Sheridan FCI: 9 (unchanged)

Otisville FCI: 9 (unchanged)

Institutions with the largest number of currently positive-testing staff:

Central Office HQ: 30 (unchanged)

Victorville Medium I FCI: 13 (unchanged)

Victorville USP: 13 (unchanged)

System-wide testing results: Presently, BOP has 135,092 federal inmates in BOP-managed institutions and 13092 in community-based facilities. Today's stats: Completed tests: 128,838 (up from 28,837) Positive tests: 55,486 (up from 55,485)


Total vaccine doses administered: 308,362 (up from 308,186)


Case Note: Failure to provide release plan to Warden = failure to exhaust...


In U.S. v. ALLEN D. GORION, 2022 WL 867764 (D. Haw. Mar. 23, 2022) (Seabright, CJ), although the court found defendant’s mentioning of “medical conditions” sufficed for court to consider specific conditions exhausted, failing to comply with BOP’s regulation requiring a defendant seeking CR provide a release address is a failure to exhaust, explaining: "Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), pro se Defendant Allen D. Gorion (“Defendant”) moves for immediate release from Federal Correctional Institute La Tuna (“FCI La Tuna”). The court determines that Defendant has failed to exhaust his administrative remedies[.] ...B. Exhaustion of Administrative Remedies

To satisfy the exhaustion requirement for compassionate release motions under § 3582(c)(1)(A), a defendant's request to the Bureau of Prisons (“BOP”) must explain the basis for the relief sought and provide a proposed release plan. See 28 C.F.R. § 571.61(a)(1)-(2);3 see alsoUnited States v. Burdette, 2020 WL 6375535, at *2 (E.D. Mich. Oct. 30, 2020). Stated differently, if the basis for compassionate release is not presented to the BOP, the BOP has no ability to address the request on its merits, meaning the prisoner's claim is not exhausted. See Burdette, 2020 WL 6375535, at *2; see also United States v. Mogavero, 2020 WL 1853754, at *2 (D. Nev. Apr. 13, 2020) (“Proper exhaustion necessarily requires the inmate to present the same factual basis for the compassionate-release request to the warden.”). And if a proposed release plan is not proffered, an inmate's request for reduction in sentence is not considered “submitted” for purposes of § 3582(c)(1)(A). See Bureau of Prisons, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205g 3 (2019), available at https://www.bop.gov/policy/progstat/5050_050_EN.pdf (last visited March 23, 2022) … The exhaustion requirement contained in 18 U.S.C. § 3582(c)(1)(A) is “a mandatory claim-processing rule that must be enforced when properly invoked.” Keller, 2 F.4th at 1282. That said, the exhaustion requirement should not be applied in an overly technical manner. … Here, the government argues that Defendant's request to FCI La Tuna's warden was “deficient in two ways” because Defendant: (1) “failed to give the warden notice of the particular asthma and smoking medical conditions” he now bases his Motion upon; and (2) “failed to provide the warden with a release plan” as required under 28 C.F.R. § 571.61(a)(2). ECF No. 187 at PageID # 2587. Although the court disagrees with the government's first argument, it agrees with the second. Defendant stated the following bases for compassionate release in the request he submitted to FCI La Tuna's warden: (1) the “COVID-19 outbreak”; (2) “more contagious variants” of the COVID-19 virus; (3) “ineffective vaccines”; and (4) his “at risk medical conditions.” … Here, in the context of a request for release based on the COVID-19 pandemic, Defendant raised his “at risk medical conditions” to the warden, pointing the warden to Defendant's “medical file.” Defendant's asthma and history of smoking are reflected in Defendant's BOP medical records and are “similar” enough to the grounds raised in the instant Motion such that, if otherwise properly exhausted, Defendant's Motion can proceed. … Nevertheless, Defendant did not provide the warden with a proposed release plan as required under 28 C.F.R. § 571.61(a)(2). See ECF No. 180-1 at PageID # 2468. Although Defendant provided the court with a proposed release plan in his Motion, see ECF No. 182-3, Defendant's request to the warden does not reflect submission of a release plan and Defendant does not otherwise offer any evidence or assert that he complied with this requirement. Because the government properly invoked the mandatory claim-processing rule of administrative exhaustion, see Keller, 2 F.4th at 1282, the court finds that Defendant failed to exhaust his administrative remedies, justifying the denial of his Motion on this ground alone.”


Death Watch (Note: The BOP press website announces BOP COVID-related deaths here.) The BOP has identified the two fatalities announced yesterday as Donnico Tyrel Johnson, 50, of USP Coleman 1, who died March 17, 2022, and David Paul Fuller, 60, of FMC Butner, who died March 3, 2022. The inmate-related COVID death toll remains at 290. Eleven of the inmates died while on home confinement. Staff deaths remain at 7.

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